1. #1
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    Default Does anyone else have a problem with this?

    Firefighters find heroin among ruins
    By MURALI BALAJI / The News Journal
    05/19/2005As Minquadale and Good Will firefighters combed through the charred second floor of Jackie Brooks and Lois Reed's New Castle-area home Tuesday evening, they found one item that survived an extensive fire extinguished just moments earlier: a lockbox.

    Firefighters searching the box found 92 bags of heroin and $3,800 in cash from suspected drug activity, New Castle County Police spokesman Cpl. Trinidad Navarro said. Police promptly arrested Brooks, 47, and his fiancee Reed, 42, who watched as firefighters contained the blaze.

    Both were charged with possession with intent to deliver heroin, maintaining a dwelling for keeping a controlled substance, possession of drug paraphernalia and conspiracy. Bail information was not released.

    In 2002, Brooks, of the first block of Oakmont Drive, sued the New Castle County police for striking him in the left eye during an arrest attempt and blinding him. Police, however, contended that Brooks got into a scuffle with Officer Deshawn Price following a 90-minute chase in the community of Rosegate.

    In that case, Brooks was charged with possession with intent to deliver marijuana, resisting arrest and other offenses.





    Ok, great, another criminal bites the dust, but the problem I have as a firefighter is the firemen on scene searching through this supposed locked box. Does anyone else see a problem here?
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    Yes. It is not our job to perform criminal investigations. If they suspected something about the box, it should have been turned over to law enforcement. I can see now reason why a FF would be open a Lockbox while performing overhaul other than to be nosey.

    Even if they were checking the contents to see if it was salvagable to turn over to the home owner, they should have just turned the box over without opening it. Let the owner decide what they want to keep.

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    I forsee a good possibility this case will be thrown out for illegal search and seizure. Even if the police suspected drugs were in the residence,and had asked the firefighters to be on the lookout for drugs, the fire department had no valid reason to "search through" a locked strong box.

    It will be interesting to see how this develops. George, perhaps you can comment on this one as the resident expert?
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    How the heck did they get in to that locked strongbox?? Sure I know we have the equipment, but I can't see firefighters on routine overhaul or investigation going at a safe with a K12??

    Or maybe it wasn't locked and they were just, you know, inventorying(sp?)

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    I agree with the general consensus here, I would NOT have opened the box. Quite frankely it's non of my business! There could of been a few reasons as "how" the box got opened. Either it wasn't locked to begin with (don't have one so I am not sure if they lock when closed. Even if it was closed and not locked they shouldn't of opened i9t.) or it was opened to "see if they could get in".



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    The real question for me is was the box locked? If so, then I've got a problem with the firefighters opening it up.

    If it were unlocked, I don't think it was unreasonable to lift the lid in order to determine if it contained any salvagable contents.

    Regardless of how or why they got in the box, once they found the drugs I completely and fully agree with notifying the police. At the worst, the drugs are off the street and an apparently previously unknown dealer has been identified. At best, they will be getting a new place to stay courtesy of the state.

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    The rule that the courts will use is whether the occupants had a "reasonable expectation of privacy". In this case, because it was a locked box, yes, they did. Public safety officials have the right to enter a home without permission under exigent circumstances (e.g. to put out a fire). They also have the right to search the fire area in an effort to ensure that the danger has subsided. However, to perform a search outside of the fire area generally requires a criminal warrant.

    It is tough to know specifics from this short article, but my impression of this case is that the firefighters performed an unreasonable search. The charges will most likely be dropped because the evidence seized is the fruit of that search.

    Anyone interested in this topic should check out Legal Aspects of the Fire Service by Lawrence Hogan. Required reading for me, but highly interesting nonetheless.

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    Originally posted by EricCSU
    It is tough to know specifics from this short article, but my impression of this case is that the firefighters performed an unreasonable search. The charges will most likely be dropped because the evidence seized is the fruit of that search.
    It says LOCKBOX, not locked box.

    What would a reasonable person do? Would a reasonable person open a box while conducting salvage operations? Sure. Would a reasonable person FORCE a locked box while conducting salvage operations? Probably not.

    That aside, were the firefighters acting as agents of, or on behalf of law enforcement officials to "search"? Doubtful. Accordingly, those evidentiary rules get thrown out the window.

    FWIW and IMHO, it's fair game.
    Last edited by Resq14; 05-19-2005 at 11:20 AM.
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    Originally posted by Resq14


    It says LOCKBOX, not locked box.

    What would a reasonable person do? Would a reasonable person open a box while conducting salvage operations? Sure. Would a reasonable person FORCE a locked box while conducting salvage operations? Probably not.

    That aside, were the firefighters acting as agents of, or on behalf of law enforcement officials to "search"? Doubtful. Accordingly, those evidentiary rules get thrown out the window.

    FWIW and IMHO, it's fair game.
    I dont know, I believe that the rules still apply. If they were assisting in the investigation of the fire then all evidentiary rules apply. I also believe if they were in the process of salvage operations and discovered the box with the drugs, it would be wise to secure a warrant prior to any further action.
    I am wondering if in the process of salvage operations the lockbox was accidentally tipped over and opened would the plain sight rule apply. For example, If the lockbox was on a closet shelf and while in the process of clearing the closet the box was dislodged, fell to the floor and spilled its contents would the plain sight rule apply?
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    Could it be argued they were searching for Hazerdous Materials and Pollutants. It's a broad brush, but may cover their arses.

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    Originally posted by Lewiston2Capt


    I dont know, I believe that the rules still apply. If they were assisting in the investigation of the fire then all evidentiary rules apply. I also believe if they were in the process of salvage operations and discovered the box with the drugs, it would be wise to secure a warrant prior to any further action.
    I am wondering if in the process of salvage operations the lockbox was accidentally tipped over and opened would the plain sight rule apply. For example, If the lockbox was on a closet shelf and while in the process of clearing the closet the box was dislodged, fell to the floor and spilled its contents would the plain sight rule apply?
    If it fell over and its contents spilled out, then it is covered under the plain sight rule. That also means that it is not locked and secured, diminishing any reasonable expectation of privacy. But, this must occur in the fire area and be related to fire suppression operations, otherwise a criminal warrant is needed to enter another area of the residence.

    Eric

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    Originally posted by Resq14


    It says LOCKBOX, not locked box.

    What would a reasonable person do? Would a reasonable person open a box while conducting salvage operations? Sure. Would a reasonable person FORCE a locked box while conducting salvage operations? Probably not.

    That aside, were the firefighters acting as agents of, or on behalf of law enforcement officials to "search"? Doubtful. Accordingly, those evidentiary rules get thrown out the window.

    FWIW and IMHO, it's fair game.
    I guess I would need more specifics on what the actual box was. What exactly is a lockbox? Is your definition the same as the author of the article? My assumption is that is a box with a lock to secure its contents.

    Whether the firefighters where acting as agents of law enforcement officials in a search is inconsequential if they opened the box. Without a warrant, sufficient exigent circumstance, or permission from the owners, they can not open the box. Therefore, anything derived from the opening of the box is illegally seized and can not be used to prosecution.

    I'm interested to see what George has to say about this.

    Eric
    Last edited by EricCSU; 05-19-2005 at 01:28 PM.

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    Assume a random person enters your house, rummages through your stuff, finds something illegal, and calls the police. This person does not have a legal right to be in your house, so a burglary or criminal trespass situation is an issue. Regardless...

    If this person person discovers your stash and meets the police at your door with your kilos of drugs, is this evidence automatically subject to exclusion?

    As long as this person is not acting as an agent of the court, I am quite sure that the evidence would not be thrown out. I believe that is one of the primary factors in the decision.

    Firefighters can't execute arrest warrants in most states. Likewise, I don't believe they are considered officers of the court that are empowered with and bound to these types of procedures.

    GW has more experience than I in these matters, and I'd welcome his input as well.
    Last edited by Resq14; 05-19-2005 at 04:48 PM.
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    Lady and Eric are right on. This case has an excellent chance of getting dumped.

    Let's address the issues one at a time.

    1. If the heroin was on the dresser, it would be a good find. It would fall under the plain view doctrine, which essentially states that evidence found in plain view would be admissable.

    My interpretation of the plain view doctrine is: "If you are where you're supposed to be, doing what you are supposed to be doing, you are OK".

    2. It matters not if the box was locked or not. If it is closed it is considered a secured compartment. In order to perform a search on that compartment, consent or a warrant must be secured.

    3. There are dozens of cases in which the courts in this country have provided an incredibly high level of privacy expectation for people in their own home. No reasonable person would think it is OK to open this box, locked or not.

    A person's home is his castle. Look up the arson-related case of Michigan v. Clifford. This case maintains a high expectation of privacy in a post-fire environment.

    4. The FD is likely to be found to be agents of the State. They do NOT have to be found to be agents of the police or the court. They simply have to operating in an official capacity. The courts will probably find that the FD was operating as an extension of that authority. If that happens, the case is gone.

    5. One thing that the court will look at is what has the FD done in the past. I can tell you from past experience, that even in the fire service, I have never opened a secured box that may contain valuables. What I advocate doing is to turn that box over the PD and to have the PD turn it over to the victim's. This would usually require them to open the box and inventory it so a proper release and receipt can be executed. If this had occurred, the search would have been perfect.

    If the victim refused to open the box, the officer could have reasonably refused to immediately turn it over to them because they could not prove ownership.

    6. It is a ridiculous and intellectually dishonest argument to suggest that they were looking in a lockbox found in the fire debris at a house fire for hazardous materials. It is equally ridiculous to suggest that the "box just fell open" during fire fighting operations.

    7. If I was the Chief of this outfit, there would be a whole crew of guys up on charges.

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    Originally posted by GeorgeWendtCFI
    4. The FD is likely to be found to be agents of the State. They do NOT have to be found to be agents of the police or the court. They simply have to operating in an official capacity. The courts will probably find that the FD was operating as an extension of that authority. If that happens, the case is gone.
    That was my big question, and if that's the case then I agree.

    I know this changes the scenario (not a locked box or lockbox), but can you offer your insight on the following:

    Same situation, just the drugs were in a cabinet that was being emptied as part of salvage operations to protect contents (family heirlooms, etc) from water and smoke damage.

    We do this all the time at house fires... I've never thought about coming across drugs while doing so, though. We'll grab photo albulms and personal stuff in cabinets and shelving units that's hard to replace, and that can't be protected with salvage covers. To me, this is an inherent part of the job and is not unreasonable at all.
    Last edited by Resq14; 05-19-2005 at 06:10 PM.
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    Originally posted by GeorgeWendtCFI
    Lady and Eric are right on. This case has an excellent chance of getting dumped.


    6. It is a ridiculous and intellectually dishonest argument to suggest that they were looking in a lockbox found in the fire debris at a house fire for hazardous materials. It is equally ridiculous to suggest that the "box just fell open" during fire fighting operations.
    George,
    I wasnt suggesting that the box just fell open. More expanding on the idea that the box was found, perhaps in an unlocked position.

    My limited experience with this as an investigator is in line with yours, if you see it photo it and call law enforcement over to take care of it.

    Resq,
    I was looking at this as though the firefighters are acting in an official capacity, aiding with the investigation (a leap I know).
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    Question I Dunno.....................

    I'm not too sure how this would fly here in Maryland. Number one, if my guys (and girls) found contraband during a normal operation they would stand by and get the LEOs in to take a look. Once Law Enforcement got to the item in question, our work would be guided by their requests, same as we do with our own investigators. We're going to do whatever we can to help make a case, not break it. I respect George's expertise in this area, and I have no second thoughts when he states a point. We'll have to see how this one turns out.

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    I dont care if it was locked or not. The firefighters had no business opening it. What were they doing, checking for extension? If it was shut and they opened it, no case.

    However, if the box was open and in plain view of them performing normal post fire activities, then they have a duty to report it to PD (at least here).

    We had a fire years ago in a closet caused by overheated lamps used for growing pot plants. We reported what we found to PD. The person was convicted.
    Last edited by Dave1983; 05-19-2005 at 08:54 PM.
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    Default Re: I Dunno.....................

    Originally posted by hwoods
    I'm not too sure how this would fly here in Maryland. Number one, if my guys (and girls) found contraband during a normal operation they would stand by and get the LEOs in to take a look. Once Law Enforcement got to the item in question, our work would be guided by their requests, same as we do with our own investigators. We're going to do whatever we can to help make a case, not break it. I respect George's expertise in this area, and I have no second thoughts when he states a point. We'll have to see how this one turns out.

    Eric, you taking a class with Prof. Hogan?
    Prof. Ross at UMUC, but we used that text along with the NFA course guide "Political and Legal Foundations of the Fire Service." Good stuff. I also took Fire and Arson Investigation at the same time. The classes had a lot of overlap, which helped while taking 18 credits.

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    We will never know all the facts in this case, and honestly I hope the sob’s they busted get locked up for a long time and I am glad they found the drugs and heck for all we know the box was partially burning and they had to open it thinking there were smoldering items in it or they did break it open, but we well never know and I am glad they found it. If the people get off on some BS technicality then our systems of laws need some serious over halling.
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    Originally posted by BFDNJFF
    We will never know all the facts in this case, and honestly I hope the sob’s they busted get locked up for a long time and I am glad they found the drugs and heck for all we know the box was partially burning and they had to open it thinking there were smoldering items in it or they did break it open, but we well never know and I am glad they found it. If the people get off on some BS technicality then our systems of laws need some serious over halling.
    The violation of someone's civil rights is not "some BS technicality". It is a constitutionally guaranteed fundamental right.

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    If it fell over and its contents spilled out, then it is covered under the plain sight rule.
    However, if it "fell over" 2 or 3 times...from the second floor...might be a problem.

    Seriously, I agree...I can think of no legitimate reason for it to have been opened....A person has a right to privacy in their own home...I can think of no better way to say "This stuff is private and no business of yours" than to lock it up in a strongbox.
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    I have to agree with George and his assessment, not just because I know he knows his business, but the few classes I've had in this arena suggest the same.

    One caveat in Texas: the fire department owns the house that was on fire when they enter it to put it out. We can legally refuse entry to the homeowners until we deem that we are done our job. Granted we usually have the Fire Marshal's on scene by that time, and they're the armed individuals making that statement so we don't have to. As far as I understand they can check, open, and look at anything and everything in the house in looking for a cause. If something else is discovered that is illegal, they just call in the sheriff, as I said it's the fire department's house so they don't need owner permission, the fire department is the owner. I tried to dig up some case law to go with this, but I can't find any in a timely manner. Considering that to the best of my knowledge this is still the current legal standing, I'm guessing that no one has gotten the law overturned. Especially since I know of many times where drugs were found during the course of overhaul, hidden in walls, under beds, in boxes, etc, etc. And the convictions have all stood.

    But to agree with most everyone else, I wouldn't have opened something that looks like a lockbox, whether it was locked or not. People keep passports, jewels, cash, and other valuable or sentimental items in those things. I do. I wouldn't want to take the chance that the person then claims something was stolen out of it. See it, put someone next to it without touching it, have LE come in and pick it up to take outside. About the only thing we ever remove are drawers from a bureau or something, and only after asking the owners what ones they want us to bring out for them. The legal aspects of the fire service are black and white if you don't keep playing in the gray areas.

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    While I admit that I do not know TX law, I can tell you that a state cannot pass a law that violates a citizens basic civil rights. The right to an expectation of privacy is not thrown away because a person has a fire in their home. I agree that evidence or contraband found during the course of fire suppression activities would be fair game, there is no way a person could articulate that they were looking for a fire cause or fire extension in a locked box, briefcase or suitcase.

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    I agree, if the box was secured, there was no reason to open it, unless it may have had something to do with investigating the cause of the fire.......
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